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Yemenis imprisoned at Guantanamo are cleared for transfer home: Why is it not happening?

News YemenBy Martha Rayner*May 11, 2005

There are 384 men imprisoned at Guantanamo–over one quarter of them are
Yemenis. Of the approximately 100 Yemenis locked up at Guantanamo, only
a mere eight have been sent home. Up until recently–just this past
December--when a group of six Yemenis were transferred home, the United
States and Yemen were at a diplomatic standstill over repatriation
because they could not come to an agreement regarding the conditions of
transfer. One point of conflict was the United States’ request for
assurances that those transferred toYemen would not be tortured. Yemen
would not give assurances over and above reference to the prohibition
of torture under Yemen law. With the release of six Yemenis last
December, I had hoped the diplomatic logjam had been resolved, but the
fact that no additional Yemeni men have been transferred in almost 5
months dashes my optimism and raises the question: why haven’t more
Yemenis been sent home?
Through my work in representing two men from Yemen and working with
American lawyers representing other Yemenis, I know of at least 7
Yemenis who have been approved by the United States to leave
Guantanamo–there are likely many more who remain uncounted because they
do not have lawyers. At least one of those men, a client of Fordham
University School of Law’s International Justice Clinic, has been
approved by the U.S. Government to leave Guantanamo for over one year.
How can any jailer continue to incarcerate a young man in the the harsh
conditions that exist at Guantanamo so long after even the jailer has
determined he should be released. How can the Yemeni government sit by
and do nothing when one of their citizens languishes without any
justification in a foreign prison?
My client, Mohammed Ali Nasser Mohammed, was barely eighteen when he
was turned over to the United States military soon after the U.S.
invasion of Afghanistan–he is already deep into his sixth year of
imprisonment. A year ago, Ali was informed by the U.S. military that he
was going to be released from Guantanamo and was“processed” for
transfer. At the last minute, Ali learned that the U.S. Department of
Defense had designated him a Saudi and he was destined for Saudi
Arabia. Since Mr. Mohammed is not a Saudi citizen, the Saudi government
refused to accept him. On May 18, 2006 sixteen men were slated to leave
Guantanamo, but only fifteen made the flight to Riyadh.
Ali is a Yemeni citizen. Because he was born in Saudi Arabia, however,
the U.S. military designated him a Saudi national. The military imposed
the American way of doing things on my client: any person born in the
United States, is a U.S. citizen. The designation of citizenship,
however, works quite differently in the Gulf states. Though Ali was
born in the Kingdom of Saudi Arabia, he was born to Yemeni parents and
as a young child moved to Yemen and has lived there ever since. This
young man is unquestionably a Yemeni national and citizen.
The next steps should have happened rapidly: correct Ali’s citizenship
designation and arrange for transfer to his true home country. Instead,
nothing has happened; Ali remains designated a Saudi by the U.S.
military. My inquiries of the U.S. government as to why this mistake
has not been cleared up are met with a stone wall–my government simply
will not talk to me about what if anything is being done to rectify
this injustice. And due to President Bush and Congress’ short sighted
policies and laws, Ali case cannot be reviewed by a neutral,
independent court with power to order justice. The Yemen government
claims it will accept for transfer any man confirmed to be Yemeni, yet
Yemen maintains that there is nothing it can do on Ali’s behalf.
In March, U.S. Secretary of Defense, Robert Gates, stated unequivocally
that the United States was working to repatriate men held at
Guantanamo, but claimed “their home countries don’t want them.” Yet,
how is it that Ali’s concrete and contained problem has not been
resolved? Why is this young man still in a prison thousands of miles
away from home, cut off from the world, closing in on six years?
Together, Yemen and the United States can readily establish Ali’s
nationality and send him home.
I and my colleagues are traveling to Yemen at the end of this month. We
look forward to meeting with government officials in Sana’a and working
together to resolve Ali’s problem. I invite Yemen to actively focus on
this dire situation as well as the plight of other Yemenis who have
been cleared for release, but remain incarcerated at Guantanamo. Yemen
must do all it can to assure its citizens are not left to languish in
Guantanamo while so very many others have been and continue to be
released.

* Martha Rayner is an Associate Clinical Professor of Law, Fordham
University School of Law, New York City, and teaches the International
Justice Clinic which focuses on the representation of men imprisoned at
Guantanamo Bay, Cuba, by the United States Military.